1. Where the trial court has made findings of fact and conclusions of law, the function of an
appellate court is to determine whether the findings are supported by substantial
competent evidence and whether the findings are sufficient to support the trial court's
conclusions of law.

2. Substantial evidence is evidence which possesses both relevance and substance and
which furnishes a substantial basis of fact from which the issues can reasonably be
resolved. Stated in another way, substantial evidence is such legal and relevant evidence
as a reasonable person might accept as being sufficient to support a conclusion.

4. In order to apply the doctrine of res ipsa loquitur, a plaintiff must show: (1) that the
defendant had exclusive control of the thing or instrumentality causing the injury or
damage; (2) that the nature of the injury or damage was such that it ordinarily does not
occur in the absence of someone's negligence; and (3) that the plaintiff was not
contributorily negligent. The requirement that the plaintiff not be contributorily negligent
must be modified today to incorporate the relevant comparative negligence principles.

MEEKS, J.: Charles and Dawn Harmon appeal the trial court's finding that Dale
and Reba Koch were not negligent in the containment of their livestock and that the
doctrine of res ipsa loquitur is not applicable to cases involving escaped livestock.

In the early morning hours of December 6, 1994, Charles Harmon was driving
home from his job in Beloit when he came upon six calves lined up across the road.

Charles claimed that he was driving 40 miles per hour and had very little time to
react in order to avoid hitting the animals. Charles struck the calves, three of them
came up onto the hood of his car and then went up and over the roof. Charles testified
that, during the impact, a hoof came through the windshield and hit him in the face.
After the impact, the car traveled another 50 to 100 yards and ended up off of the road
in a wheat field. Charles was off work for a week after the accident and suffered a
whiplash neck injury and permanent scarring on his face.

The calves were owned by Dale and Reba Koch and had broken out of a corral
which was located about 7 and 1/2 miles from the scene of the accident.

Dale testified that on the night of the accident the corral was holding 87 calves,
weighing from 500 to 700 pounds each, that had recently arrived from Kentucky. Both
Dale and Reba testified that the calves appeared calm when they arrived and up to the
night of the accident.

At trial, the Harmons presented the expert testimony of Ed Brokesh, an engineer
who designed fencing for cattle corrals and who inspected the corral. Brokesh testified
that the corral was made of continuous fencing, using fence panels made up of six, one
and a quarter inch round, horizontal bars, connected to posts that were spaced from 9
to 10 feet apart. Brokesh testified that he recommended to his customers that spacing
between posts be from 8 to 10 feet and that the farther the spacing, the weaker the
fence.

Brokesh testified that, in addition to the opening on the west side of the fence
where the calves had gotten out, he found two places where the fence had been
damaged and one place where the fence panels were just held in place by clips at the
top, leaving the bottom free to move. In his opinion, the cumulative effect of these
problems contributed to the calves' ability to break down the fence and escape.
Brokesh believed the main problem with the fence was its installation, although there
were also some apparent maintenance problems.

There was evidence at trial that the Kochs had cattle get out of other corrals in
the past and wander into the road. Dale Koch admitted that cattle had escaped in the
past from other pens he owned. Dale claimed that the only explanation he had as to
why the calves had broken out of the corral was that something had frightened or
spooked them, causing them to hit the west side of the fence and break down a post.

Brokesh testified that a corral which was going to be holding animals which were
likely to be spooked ought to be made a little bit stronger than the pen which was
holding the calves that escaped. However, Brokesh also stated that he did not believe
that a corral could be built that would totally prevent spooked animals from escaping.

The Kochs produced the expert testimony of George Eakin, an engineer who
manufactured livestock equipment. Eakin testified that the Kochs' corral had been
sufficiently strong for its purpose. In addition, Eakin testified that from what he knew of
the situation, it was his opinion that the calves had been spooked by something. Eakin
testified that this was evidenced, in part, by the distance the calves had gone after
breaking out of the corral.

Eakin testified that he found concrete around the base of the fence posts of the
corral when he dug 8 inches down on the outside of the fence posts. Apparently, the
concrete had been placed to the outside of the corral. However, Eakin testified that
even one calf, weighing approximately 570 pounds, could have broken the fence post in
question if it had been moving fast enough and had hit the post at the right place.

The trial court determined that the Kochs had exercised due care in containment
of the calves and were, therefore, not negligent. In addition, the trial court found that
even if the Kochs had been negligent, such negligence was not the proximate cause of
the accident. Rather, it was the spooking of the cattle which proximately caused the
Harmons' damages. Finally, the trial court determined that the doctrine of res ipsa
loquitur was not applicable to a livestock escape case.

"Where the trial court has made findings of fact and conclusions of law, the function of
an
appellate court is to determine whether the findings are supported by substantial competent
evidence and
whether the findings are sufficient to support the trial court's conclusions of law. Substantial
evidence is
evidence which possesses both relevance and substance and which furnishes a substantial basis
of fact
from which the issues can reasonably be resolved. Stated in another way, 'substantial evidence'
is such
legal and relevant evidence as a reasonable person might accept as being sufficient to support a
conclusion. [Citations omitted.]"

"When a verdict is challenged for insufficiency of evidence or as being contrary to the
evidence, it
is not the function of this court to weigh the evidence or pass on the credibility of the witnesses.
If the
evidence, with all reasonable inferences to be drawn therefrom, when considered in the light
most
favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.
[Citation omitted.]"

The Harmons argue that the trial court erred in finding that the Kochs were not
negligent in the installation and maintenance of the fence which held the calves. The
Harmons do not otherwise argue that the trial court erred in finding that the calves
became spooked, or otherwise dispute that the spooking of the cattle was the
proximate cause of the Harmons' damages.

Evidence was produced at trial which supported the trial court's conclusion. In
fact, even Brokesh, the expert for the Harmons, testified that although the fence had
some problems, it was comparable to the kind of fencing used by other livestock
producers and that even though using shorter spacing between the fence posts would
have reduced the likelihood of escape, it would not have prevented it completely. In
addition, the evidence showed that although cattle had gotten out of other corrals
owned by the Kochs, the only other time a calf had escaped from the corral in question
was once when someone had left a gate open.

For these reasons, it appears that the trial court's conclusion that the Kochs had
exercised due care in the containment of the calves was supported by substantial
competent evidence and should be upheld.

Next the Harmons ask this court to extend the application of the doctrine of res
ipsa loquitur to include livestock cases. The trial court found that the doctrine was not
applicable to such cases, citing Walborn v. Stockman, 10 Kan. App. 2d 597, 706
P.2d
465 (1985). This court's review of conclusions of law is unlimited. See Gillespie v.
Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

In Walborn, this court stated:

"Kansas courts have consistently refused even to consider the application of res ipsa loquitur
to the
livestock trespass case. An example is Wilson v. Rule, 169 Kan. 296 [, 219 P.2d
690 (1950)], an
analogous case in which the only evidence presented was that defendant's two mules were loose
and
unattended on the highway when plaintiff's car collided with them. The Wilson
court remarked:

'To [apply res ipsa loquitur] would be to hold that the fact an animal escapes from a pasture
or corral or
from custody while being led, ridden or driven or while hitched or tied to a hitching rack is so
unusual that
no other conclusion can be drawn from the occurrence itself than that the owner was negligent.
Our
knowledge of the ways of domestic animals forbid us doing that. We cannot assume merely
because two
mules were loose on the highway that the owner was negligent in the manner in which he
confined them.'
169 Kan. at 304." 10 Kan. App. 2d at 601.

Accordingly, the trial court was correct in refusing to apply the doctrine of res
ipsa loquitur to livestock escape cases.

Finally, even if this court were to accept the Harmons' invitation to reconsider
such application, the doctrine would not, in any event, apply in the present case. In
order to apply the doctrine, it is necessary for the plaintiff to show: (1) that the
defendant had exclusive control of the thing or instrumentality causing the injury or
damage; (2) that the nature of the injury or damage was such that it ordinarily does not
occur in the absence of someone's negligence; and (3) that the plaintiff was not
contributorily negligent. Martin v. Board of Johnson County Comm'rs, 18 Kan.
App. 2d
149, 160, 848 P.2d 1000 (1993). The requirement that the plaintiff not be contributorily
negligent must be modified today to incorporate the relevant comparative negligence
principles. Arnold Associates, Inc. v. City of Wichita, 5 Kan. App. 2d 301, 309, 615
P.2d 814 (1980), rev. denied 229 Kan. 669 (1981).

The particular facts of this case demonstrate that both the calves and the corral
were under exclusive control of the Kochs and that Charles Harmon was not in any way
at fault in causing the accident which occurred. However, with respect to the second
element above, evidence was produced at trial which tended to show that the accident
may have been caused, not necessarily by the Kochs' alleged negligent installation and
maintenance of the corral holding the calves, but by an unforseen occurrence which
resulted in the cattle becoming spooked. Consequently, sufficient evidence was
produced at trial to suggest that the nature of the injury or damage which occurred was
not the kind which ordinarily occurs as the result of someone's negligence. Thus, the
doctrine of res ipsa loquitur was not applicable under the particular facts of this case.